16-OMD-124

16-OMD-124

June 13, 2016

In re: Jim Carroll/The Kentucky Retirement Systems Board of Trustees

Summary:        The Kentucky Retirement Systems Board of Trustees violated the Open Meetings Act at its public meeting on May 19, 2016, when a Board member indicated that other Board members faced arrest and/or investigation if they participated in the meeting or stood for election as Board Chair. These indications and/or threats were supplemented by the presence of third parties from other state governmental entities, including the Governor’s Chief of Staff, as well as the presence of multiple law enforcement officers prior to the meeting and during the meeting. These actions violated KRS 61.840 by placing a condition other than those required for the maintenance of order on the attendance of any member of the public. However, the Board did not violate KRS 61.810(1) or (2) by conducting any meeting of a quorum of Board members outside of the public meeting, or a series of less than quorum meetings where the members attending one or more of the meetings collectively constituted at least a quorum of members.

Open Meetings Decision

        This appeal presents two questions under the Kentucky Open Meetings Act (the “Act”) related to the May 19, 2016, public meeting of the Kentucky Retirement Systems Board of Trustees (the “Board”). Before the meeting began, Secretary of the Kentucky Personnel Cabinet, who is also a Board member, and the Governor’s Chief of Staff indicated and/or threatened – with law enforcement officers present – that a Board member would face arrest if he attempted to participate in the meeting. Also before the start of the meeting, the Secretary of the Personnel Cabinet further indicated and/or threatened an investigation of a Board member if he sought election as the Board Chair, which would affect his ability to serve as Chair.

        The first question the appeal presents is whether the Board violated the Act based on (1) the indications and/or threats of arrest or investigation by a Board member and third parties from other state governmental entities, and (2) the presence of multiple law enforcement officers who could effectuate an arrest.¹  This office finds that the Board violated KRS 61.840 by placing conditions other than for the maintenance of order on the attendance of any member of the public to attend the May 19, 2016, public meeting.

        The second question this appeal presents is whether the Board violated the Act at the same public meeting when some Board members engaged in multiple conversations prior to the public meeting with the Secretary of the Personnel Cabinet, who is also a Board member, and non-Board members from other state governmental entities. According to the record, these conversations concerned the indication and/or threat that (1) a Board member faced arrest if he attempted to participate in the meeting, and (2) another Board member should not seek election as Board Chair because he may be or was the subject of an investigation. While this office is troubled by any indications and/or threats of arrest or investigation were made, and that such indications and/or threats may violate other Kentucky statutes or ethics rules, this office concludes that the Board did not violate KRS 61.810(1) or (2), because conversations did not constitute either a closed meeting of a quorum of Board members or a series of less than quorum meetings where the Board members attending collectively constituted a quorum.

I.        Open Meetings Complaint, Agency Response, and Appeal

        On May 20, 2016, Jim Carroll, of the Kentucky Government Retirees, submitted a written complaint to the Kentucky Retirement Systems in which he requested a review of “the applicability of Kentucky open meetings law, specifically KRS 61.840, regarding the conditions present during the Kentucky Retirement Systems board of trustees meeting of May 19, 2016.”  Carroll alleged that several Kentucky State Police Troopers were deployed to prevent Board member Tommy Elliott from participating in the meeting. He asserted that “the overwhelming police presence created an intimidating atmosphere,” and that “[a] reasonable person would conclude that it could have easily created a chilling effect on public attendance.”  Carroll attached to his complaint a document entitled “Trustee Removal Controversy Timeline,” outlining events leading up to the May 19, 2016 meeting, including that Board member and Chair Thomas “Tommy” Elliott served as Chair at the Board meeting on April 21, 2016.

        In response to the complaint, William Thielen, the Executive Director of the Kentucky Retirement Systems (“Director Thielen”), agreed that the events at the meeting may have possibly violated the Act. Director Thielen stated that and the various conversations held outside of the public view may have violated the Open Meetings Act. He further stated that the “threat” of placing a Board member under arrest for participating in the meeting created an atmosphere where the meeting could be perceived as closed in violation of the Act.

        Specifically, Director Thielen asserted that Board member and Chair Thomas “Tommy” Elliott (“Elliott”) did not participate in the public meeting due to the threat of arrest. He stated that a member of the public who had requested to participate in the meeting did not do so, and that other members of the public in attendance expressed concern about the police presence.

        Director Thielen alleged that Thomas Stephens, the Secretary of the Kentucky Personnel Cabinet and a Board member (“Secretary Stephens”), Blake Brickman, Chief of Staff to the Governor (“Chief of Staff Brickman”), and Leslie Bilby, Executive Director of the Personnel Cabinet Office of Legal Services (“Director Bilby”), threatened Elliott with arrest if he tried to participate in the meeting. Director Thielen stated that five (5) Kentucky State Police officers accompanied Secretary Stephens, Chief of Staff Brickman, and Director Bilby, and confirmed that Elliott would be placed under arrest. Director Thielen alleged that the threat of arrest prevented Elliott, who had been willing to participate in the meeting based on good-faith reliance of Attorney General Opinion 16-004, from participating in the meeting. In addition, Director Thielen asserted that Secretary Stephens – in the presence of Director Bilby – also stated to another Board member that the administration would immediately initiate an investigation into that Board member if he sought election as Board Chair. The record establishes that this other Board member was Vince Lang (“Lang”).

        As a means of remedying the alleged violations, Director Thielen stated that at its next meeting the Board would consider its options to resolve the issues that arose prior to the May 19, 2016, meeting. Director Thielen further stated that the Kentucky Retirement Systems would request that the Kentucky State Police not interfere with Board meetings in the future unless requested by the Board or the Executive Director. By letter dated June 3, 2016, to Kentucky State Police Commissioner Richard Sanders, Director Thielen requested that officers under Commissioner Sanders’ command refrain from attending the meetings of the Board in any official capacity, unless requested by the Kentucky Retirement Systems to deal with a threat of public safety.

        Finding the agency response inadequate, Carroll submitted a written appeal to this office on May 25, 2016, pursuant to KRS 61.846(3). Carroll asserted the Kentucky Retirement Systems’ apparent limitations in being able to address and rectify the alleged violations, and sought review of the agency’s response. He alleged that the disproportionate law enforcement presence that Kentucky Retirement Systems did not request created a chilling effect that discouraged public participation at the meeting.

        By letter on May 31, 2016, the Attorney General requested additional documentation from the Kentucky Retirement Systems, pursuant to KRS 61.846(2). On June 2, 2016, Brian Thomas, General Counsel for Kentucky Retirement Systems, provided the following additional documentation: the audio recording of the May 19, 2016 public meeting; a copy of the Notice and Agenda for the meeting; and the written accounts of nine (9) members of the Board. On June 7, 2016, Thomas provided the written account of Secretary Stephens, which the Kentucky Retirement Systems had inadvertently not previously provided.

        On June 2, 2016, Director Thielen submitted a written response to the appeal, adopting and incorporating by reference its response to the initial complaint. In the response, Director Thielen further stated that, “It is unclear to Kentucky Retirement Systems if there was a violation of the Open Meetings Act or not.”  

        On June 3, 2016, the Attorney General requested additional documentation from Chief of Staff Brickman, pursuant to KRS 61.846(2). Stephen Pitt, General Counsel to the Governor, responded to the request on behalf of Chief of Staff Brickman by letter dated June 7, 2016. In the letter, Pitt stated that Chief of Staff Brickman declined to provide a response, but that Chief of Staff Brickman was in general agreement with Secretary Stephens.

II.        Factual Background of the Public Meeting

        On May 19, 2016, the Board held its regularly-scheduled quarterly meeting, which was a public meeting for which the Board provided notice. According to the Agenda, the meeting was scheduled to begin at 9:00 a.m., with the election of the Board Chair and Vice Chair listed as the third item on the Agenda. The Agenda listed Public Comment as the sixth item on the Agenda.

        Leading up to the meeting, Governor Matthew Bevin issued an executive order on April 20, 2016, purportedly removing Elliott from the Board prior to the March 31, 2019 expiration of Elliott’s statutory term. Believing the Governor had acted beyond his authority, at the next Board meeting on April 21, 2016, Director Thielen and the Board decided to and did request an opinion from the Attorney General as to whether the Governor may remove a trustee at will prior to the expiration of his statutory appointed term.² As previously mentioned, a document that Carroll attached to his complaint indicated that Elliott served as Chair at the April 21, 2016 meeting. The record does not indicate that Elliott’s participation at the meeting caused any disruption.

        On May 17, 2016, in OAG 16-004, this office advised that the Governor lacked authority to remove a trustee at will prior to the expiration of his statutory appointed term. Under the opinion of the Attorney General, Elliott remained a member of the Board.

        Based on the record, the Board intended to rely on OAG 16-004 at the public meeting. The record also shows that Tommy Elliott planned to participate at the meeting as a Board member in reliance on OAG 16-004. The record further demonstrates that Lang planned to seek election as Board Chair. As the record shows, neither of those events occurred, because of the circumstances that preceded the public meeting.        

        According to the record, Kentucky State Police officers were visibly present at the location of the Board meeting on May 19, 2016 – before and during the meeting. Board member Joseph Hardesty (“Hardesty”) stated as follows in his written account:

When I arrived at the meeting of May 19, I noticed four state police standing at the entrance to the KRS building.

Once inside the building, Hardesty recalled that when he went to the offices behind the conference room he saw Director Thielen and Elliott talking with Secretary Stephens and others, and that several Kentucky State Police officers were in the same area.

        A.        Facts Regarding Elliott’s Participation in the Meeting

        According to the record, the conversation concerning Elliott’s participation in the meeting involved Elliott, Director Thielen, Chief of Staff Brickman, and Secretary Stephens, and later grew to include Board members Mary Helen Peter and Joseph Hardesty.³  In his response, Director Thielen states that Secretary Stephens, Chief of Staff Brickman, and Director Bilby “threatened” Elliott with arrest if he attempted to participate in the meeting. He further states, “Accompanying these individuals were five KSP officers who confirmed that Mr. Elliott would be placed under arrest.” 

        Similarly, in his written account Elliott claims that upon his arrival to the building Secretary Stephens and Chief of Staff Brickman stated that they needed to talk with him, and the three (3) of them stepped into Director Thielen’s office, after which Elliott closed the door. Elliott writes:

Brickman immediately began to inform in a raised voice that, YOU are not going to attend this meeting, You are not on this board, You are not the Chair, You are not going to vote, and You will not sit at the (board) table. AND if you attempt to there are State Police in the lobby and they will arrest you and take you to jail.

        Elliott states that when he asked what he would be arrested for, Chief of Staff Brickman stated that he would be arrested for disruption of a public meeting, a misdemeanor under KRS 525.150. He states that when he exited the office, he informed other Board members and Director Thielen of the conversation and a debate ensued between Secretary Stephens and Chief of Staff Brickman, attorneys, Director Thielen, Hardesty and Summers. Hardesty provides in his written account that when he asked for the authority for arresting Elliott, the Governor’s Assistant General Counsel cited to a specific Kentucky statute making it a misdemeanor to disrupt a public meeting.

        Elliott also wrote in his account that he entered the meeting room with Brickman and Kentucky State Police officers. He states that after Chief of Staff Brickman told him he could not sit at the Board table and directed him to sit elsewhere, Elliott first stood in the room and then sat down with two (2) officers standing near him.

        In his written account, Secretary Stephens states that he participated in a conversation with Director Thielen, Elliott, Peter, and Chief of Staff Brickman in an office space exterior to the main Board room. Secretary Stephens states that the purpose of the conversation was to avoid any type of disruption to the Board meeting and to de-escalate any tensions. He asserts that other Board members entered and exited the office space at various times, but, to the best of his knowledge, they did not participate in the conversation. Secretary Stephens states that he and Chief of Staff Brickman “explained” that should he insist on being seated at the meeting he would be in violation of KRS 525.150, which makes it a misdemeanor to obstruct or interfere with a lawful meeting in the Commonwealth.⁴  

        Secretary Stephens also claims only three (3) Kentucky State Police officers were present – two (2) uniformed and one (1) non-uniformed. He claims that, to the best of his knowledge, no member of the Kentucky State Police made any statement to Elliott or any Board member that Elliott would be placed under arrest if he “entered the meeting.”

        As the audio recording of the meeting reveals, Director Thielen began the public meeting by stating that representatives of the Governor’s Office and the Personnel Cabinet had indicated that Elliott could not participate in the meeting, and had “threatened” to have him arrested under a misdemeanor statute if tried to participate. The audio recording of the meeting also establishes that Director Thielen informed those in attendance that, under the circumstances, Elliott had decided “to sit this one out.”   No one commented on, asked to comment on, or voiced disagreement with Director Thielen’s statements at the beginning of the meeting.

        The Attorney General cannot resolve factual disputes in the context of an open meetings appeal. 00-OMD-169. While some disputed details exist in the record as outlined above, there is no factual dispute that a conversation occurred involving Secretary Stephens, Chief of Staff Brickman, and Elliott, and later involved Hardesty, Peter, and Director Thielen. Regardless of whether Secretary Stephens or Chief of Staff Brickman “threatened” or “explained” the possibility of arrest to Elliott, there is no factual dispute that they indicated to Elliott that if he attempted to participate in the public meeting, he faced arrest under KRS 525.150. These undisputed facts, based on the record, are the only facts the office considers in this appeal.

        In addition, there is no factual dispute that multiple Kentucky State Police officers, who could effectuate an arrest, were present before and during the public meeting. While there are differing accounts as to how many Kentucky State Police officers were present, publicly-available video images and photographs published by media indicate between three (3) and four (4) law enforcement officers with visible badges and holstered firearms were present during the meeting. The photographs show that least one (1) uniformed officer and one (1) plain-clothed officer stood at a door and near Elliott, who was seated away from the Board table with other members of the public. The video images and photographs also show another uniformed officer stood at another door during the meeting. In addition, a photograph shows a plain-clothed officer with a badge and holstered firearm standing in the meeting room at some point during the meeting. A photograph also shows the door nearest Elliott without any officers at some point in time, and the back of an officer exiting the other door at some point.⁵  Nothing in the record suggests that either Director Thielen or a quorum of the Board requested the presence of law enforcement officers before or during the meeting.

        B.        Facts Regarding Lang’s Potential Election as Board Chair

         In his response, Director Thielen states that Secretary Stephens and Director Bilby had a conversation with another Board member in which they asserted the administration would immediately initiate an investigation into the Board member if he sought election as Board Chair. Again, the record establishes that this other Board member was Lang.

        In his written account Lang states that before the meeting at 8:55 a.m., Secretary Stephens and Director Bilby asked him to meet with them in the privacy of Director Thielen’s conference room. Lang provides:

Once inside, Mr. Stephens told me I would not serve as Chair. He stated that if I was elected there would be an immediate investigation. All my e-mails and documents would be seized and there would be damaging documents released.

        Lang further asserts that after he stated his qualifications for the Chair position and that his role as Chair would be to preside over meetings and appoint members to committees, Secretary Stephens repeated “the same threatening comments” about an investigation of his records if he were elected Chair. Lang states that Secretary Stephens claimed that Lang would use his influence as Chair to influence a personnel matter involving Lang’s wife. Lang asserts that Secretary Stephens referenced several elected officials contacting the administration on his wife’s behalf. However, the record does not indicate that Lang’s wife is affiliated with the Board or the Kentucky Retirement Systems. Instead, any personnel matter would presumably be pending before Secretary Stephens’ Personnel Cabinet.

        In his written account, Secretary Stephens asserts that Director Thielen’s statement regarding the conversation with Lang is a mischaracterization. However, Secretary Stephens does not offer any details as to what he discussed with Lang. Rather, Secretary Stephens states that it appears an organized meeting of certain Board members occurred prior to the meeting to coordinate the particular member’s election as Board chair. He also states that he has received information that this other Board member may have violated the Conflict of Interest Policy for the Kentucky Retirement Systems. Stephens stated that the investigation is ongoing and may call into question the Board member’s ability to serve as Chair. He states that the information will be brought to the Board’s attention at the appropriate time. ⁶

        While a dispute in the record exists as to the details of the conversation exists, there is no disputed fact that the conversation occurred prior to the meeting between Secretary Stephens, Director Bilby, and Lang, and that it pertained to Lang’s potential election as Board Chair. Further, based on Secretary Stephens’ statement that he has received information about Lang that will be shared with the Board at the appropriate time, and an ongoing investigation of Lang that may call into question his ability to serve as Chair, this office may infer that he and Lang discussed this information and a potential or actual investigation of Lang that could affect his ability to serve as Board Chair. Again, Secretary Stephens did not offer any details as to what he discussed with Lang, including any statement to the contrary of such an inference.

        C.        The Record of the Public Meeting

        As the audio recording of the public meeting reveals, the meeting began with Director Thielen informing those of the indication to Elliott that members of the Governor’s office and the Personnel Cabinet had indicated that Elliott could not participate on the Board, that he was no longer a member of the Board under the executive order, and that they had threatened to have Elliott arrested under a misdemeanor statute if he attempted to participate. Director Thielen continued by saying that, under the circumstance, Elliott had decided “to sit this one out.”  Director Thielen introduced two (2) new members of the Board, one of whom was sworn in after the Board roll was called.

        Then, Director Thielen stated the next item on the agenda was the election of officers, but that he thought the Board had things to cover before it addressed that item. Director Thielen asked Elliott for comment, but Elliott declined in an inaudible manner. Director Thielen then announced his retirement from the Kentucky Retirement Systems prior to the previously-announced time.

        After Thielen expressed his thoughts on the issues that deferring the election of a Chair and Vice Chair would create, an unidentified Board member recalled pertinent prior events – the executive order with respect to Elliott’s position, the Board’s choice to ask for an Attorney General opinion, and the implication that the Board would follow whatever the Attorney General advised. This Board member stated that Board members came in that morning confronted with the Kentucky State Police to arrest Elliott if he participated in the meeting, which he found “extremely troubling.”  The Board member found it “troubling that Mr. Elliott would be threatened with arrest if he sat at the table and voted.”  He stated that the Board needed to proceed with its business despite what had happened that day.

        Then, Peter moved to nominate Lang for consideration as Board Chair, which was seconded. After discussion had concluded, but during further discussion, an unidentified Board voiced his belief that it was imprudent for the Board to elect a Chair under the circumstances. However, this Board member recognized the necessity of a Chair to continue the meeting.

        After Peter asked whether to withdraw her motion or amend it to nominate Lang as Chair for the meeting, Lang asked to address the Board. After stating that he did not want to add additional controversy or cause more friction, Lang said he was okay with deferring the vote to another date and that he had no desire to chair the meeting. This prompted the withdrawal of motion and the second, and the Board passed a motion to defer the election of Board officers. The Board subsequently elected Hardesty to serve as the Chair for the remainder of the meeting.

        At approximately the 16:30 mark of the meeting, Hardesty announced the Public Comment item with a three-minute time limit on the Agenda, and said the Board added the item to the Agenda a few meetings earlier. Hardesty introduced Larry Totten for Public Comment. Declining to offer public comment, Totten said:

… What I want to talk about has absolutely nothing to do what’s gone on here this morning, but the mood of the timing is, uh, changed dramatically and I don’t think it’s appropriate for me to make the remarks or any suggestions I wanted to make, so I will defer that until possibly the September meeting.

V.        Analysis

        This office finds that the Board, a public agency,⁷ through the actions of a Board member and third parties from state governmental entities outside of the Board, violated KRS 61.840 by placing a condition other than those required for the maintenance of order on the attendance of any member of the public. However, the conversations that occurred prior to the public meeting concerning Elliott’s participation in the meeting and Lang’s potential election as Board Chair did violate KRS 61.810(1) or (2), as they did not constitute a closed meeting of a quorum or Board members, or a series of less than quorum meetings where the Board members attending collectively constituted a quorum.

        A.        Open Meetings Act Requires an Open Government

        The Kentucky Open Meetings Act mandates that our government should be an open one. See 04-OMD-102. In its “Legislative statement of policy,” the Act pronounces “that the basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret and exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.”  KRS 61.800. The Kentucky Supreme Court has further held:  “The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions. The failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good.”  Floyd County Bd. of Educ. v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1987); 08-OMD-180.

        This appeal presents a situation that appears to violate the very spirit and essence of the Act. A behind-closed-door indication of arrest if a Board member attempts to participate, or of an investigation of a Board member who potentially may seek election as Chair, made with the intent to alter decisions or behavior related to a public meeting for public business, violates the mandate that public business not be conducted in secret. Moreover, the presence of multiple law enforcement officers, who can effectuate an arrest, at the request of someone other than the agency head or a quorum of the Board, equates to conducting public business through force. Neither scenario has a place in a democratic government that must be open. As detailed below, the actions violated KRS 61.840.

        B.        Violation of KRS 61.840

        As the Attorney General has recognized, KRS 61.840 vests the public with a virtually unconditional right to attend all meetings of a public agency like the Kentucky Retirement Systems Board of Trustees. 14-OMD-022 (citing 00-OMD-169). Specifically, KRS 61.840 provides:

No condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency. No person may be required to identify himself in order to attend any such meeting. All agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings. All agencies shall permit news media coverage, including but not limited to recording and broadcasting.

        The Attorney General has addressed this provision of the Open Meetings Act in several decisions regarding the question of whether the conduct of a member(s) of the public during a public meeting was disruptive enough to interfere with the maintenance of order and to justify the removal of citizen(s). Id.; 08-OMD-249. None of the decisions summarized in 08-OMD-249 were in favor of the public agency. See 14-OMD-022.

         Based on the record, this office specifically focuses on whether: the participation of Elliott as a Board member or the potential election of Lang as Board Chair threatened the maintenance of order to (1) warrant the indication of the potential arrest of Elliott or the investigation of Lang, and (2) justify the presence of multiple Kentucky State Police officers before and during the meeting. This is not a close case. Neither Elliott’s participation as a Board member nor Lang’s potential election as Chair threatened the maintenance of order. Thus, the Board – through the indications and/or threats of Secretary Stephens and third parties from other state governmental entities – improperly placed upon the meeting the following conditions: the potential arrest of Elliott, intentional presence of three to four law enforcement officers prior to the meeting and standing during the meeting, including two standing near Elliott, with visible badges and holstered firearms; and (2) the potential investigation of Lang.

        First,         Elliott and the Board had a good faith basis in relying on the opinion of the Attorney General, 0AG 16-004. Pursuant to KRS 15.020, the Attorney General is the chief law officer of the Commonwealth and all of its departments, commissions, agencies, and political subdivisions, and is the legal adviser of all state officers, departments, commissions, and agencies. Government officials are expected to abide by an opinion of the Attorney General until a Court rules otherwise or the legislature changes the law. See York v. Commonwealth, 815 S.W.2d 415, 417 (Ky. App. 1991). Furthermore, governmental officers who rely upon an opinion of the Attorney General would be acting in good faith. See Babb v. Moore, 374 S.W.2d 516, 518 (Ky. 1964). See also OAG 84-136, OAG 09-004. While Kentucky Courts are not bound by opinions of the Attorney General, they can and have afforded them great weight and have considered them highly persuasive. See York, 815 S.W.2d at 415; Louisville Metro Dep’t of Corrections v. King, 258 S.W.3d 419, 421 (Ky. App. 2007) (citing Woodward, Hobson & Fulton, L.L.P. v. Revenue Cabinet, 69 S.W.3d 476, 480 (Ky. App. 2002). Valentine v. Personnel Cabinet, 322 S.W.3d 505, 5-7 (Ky. App. 2010) (citing Lexington H-L Serv., Inc. v. Lexington-Fayette Urban County Gov’t, 297 S.W.3d 579, 583 (Ky. App. 2009); Eplion v. Burchett, 354 S.W.3d 598, 603, n. 6 (Ky. App. 2011) (citing King, 258 S.W.3d at 421-22).

        The Kentucky Retirement Systems Board of Trustees was expected to abide by the opinion of the Attorney General in OAG 16-004. As such, the Board relied in good faith on the opinion of the Attorney General in OAG 16-004 in anticipation of the May 19, 2016. As a Board member, Elliott also had a good faith basis for relying on OAG 16-004. While others may disagree with the opinion of the Attorney General, such disagreement does not and cannot legitimize direct indications of arrest, whether relayed as threats or explanations, toward those who rely on the opinion.

        As this office has recognized, like other provisions of the Open Meetings Act, KRS 61.840 does not afford the public the right to participate in public meetings. 14-OMD-022; 95-OMD-99. However, in City of Lexington v. Davis, 221 S.W.2d 659, 661, the former Kentucky Court of Appeals acknowledged that “a public meeting presupposes the right of the public freely to attend such meetings with the concurrent right freely to express any approval or disapproval of any action or course about to be taken.”  The Court continued by writing: “Anything which tends to ‘cabin, crib or confine’ the public in this respect would be destructive of the right expressly provided in KRS 89.550 above.”  221 S.W.2d at 661. While the statute the Court referenced dealt with a city board of commissioners, the right it expressly provided was that all meetings were to be public. See id.  

        Along with citing Davis in recognizing the concurrent right of the public to freely express any approval or disapproval of any action or course of a public agency, 94-ORD-45; OAG 78-522, this office has repeatedly cited to Davis in open meetings decisions to encourage public agencies to adopt procedural rules that include allowing members of the public to address the agency. See 14-OMD-022; 08-OMD-249; 02-OMD-181; 95-OMD-99. Here, the record shows that the Board did adopt such a practice, adding to the Agenda of its meetings time for public comment, with a three-minute limit.⁸    

        The record clearly establishes that Elliott intended to attend and participate in the May 19, 2016, public meeting as a Board member. Elliott participated as a Board member at the April 21, 2016, Board meeting, the day after the issuance of the executive order purportedly removing him. The record does not indicate that Elliott’s participation as a Board member at that meeting disrupted the meeting.

        As the record further shows, the Board intended to conduct the May 19, 2016, meeting in reliance on the opinion of the Attorney General that the Governor lacked authority to remove Elliott as a trustee. The record shows that the public business the Board intended to undertake at the meeting included the election of the Board Chair and Vice Chair.

        The record clearly establishes that, prior to the meeting, Secretary Stephens, who is a Board member, and third parties from other state governmental entities, including Chief of Staff Brickman, informed Elliott that he was not a Board member and would face arrest under a criminal misdemeanor statute if he attempted to participate in the meeting. The record also clearly establishes that Thielen informed all of those in attendance when the meeting began. Consequently, Elliott did not participate in the meeting and instead sat in the audience with members of the public, with two (2) law enforcement officers standing nearby. The record shows that law enforcement officers stood at two (2) separate doors of the room during the public meeting. Each of the officers wore a visible badge and a holstered firearm, and at times two (2) officers stood in close proximity to Elliott. Regardless of whether or when these officers left the meeting, their presence was a condition the Board placed on the meeting without the maintenance of order having been threatened.

        This office finds that the conditions the Board placed on the attendance of any member of the public to attend the May 19, 2016, public meeting were not for the maintenance of order. It is not clearly established that Elliott’s participation in the public meeting as a Board member, acting in good-faith reliance on the opinion of the Attorney General, threatened the maintenance of order to warrant that he face arrest for a criminal misdemeanor if attempted to participate. Indeed, Elliott participated as a Board member at the April 21, 2016, meeting and nothing in the record demonstrates that his actions disrupted that meeting.

        Conditioning Elliott’s attendance on not participating as a Board member, or face arrest if he did, and having law enforcement officers present and standing near him during the meeting, violated KRS 61.840. The Board could have imposed conditions other than the condition of potential arrest to insure the maintenance of order during the meeting. If Elliott had participated in the meeting and had caused a disruption that impeded public business, the Board could have asked him to cease his conduct or leave the meeting room. If Elliott persisted in his conduct so as to impede public business, the Board then could have requested law enforcement officers remove him from the room. See OAG 80-191; OAG 78-242.

        Indeed, this office has previously held that the Open Meetings Act was violated in a similar, but less egregious situation. 14-OMD-022. There, the chair of a public agency asked a member of the public to stop speaking during a meeting, then asked him to leave the meeting when he continued to speak, ultimately leading to the county Sheriff escorting him from the meeting. Id.  The office found that conditioning the public member’s continued attendance on silence violated the KRS 61.840 because he was not so disruptive as to impede public business. Id. The office further held that the agency should have attempted to impose less restrictive conditions rather than immediate ejection.  “To hold otherwise would promote the arbitrary removal of members of the public without justification.”  Id. (citing 08-OMD-249).

        Here, the situation is more egregious. An indication and/or threat of arrest was made to Elliott before the meeting, and not after a disruption. Rather than a single Sheriff approaching and escorting an individual out of a meeting, here numerous law enforcement officers were present before the meeting, accompanied Elliott and Chief of Staff Brickman into the meeting room, and stood near Elliott. The least restrictive conditions were certainly not employed.

        In reality, nothing in the record suggests that Elliott’s participation as a Board member in good faith reliance on the Attorney General opinion threatened the maintenance of order. The indication of his arrest if he tried to participate, and the presence of law enforcement officers prior to the meeting and standing in the room during the meeting, created an atmosphere that chilled or confined the public’s right to freely attend the public meeting. The condition also chilled or confined the public’s concurrent right to freely express their approval or disapproval of any action the Board may have taken. Would a member of the public feel free to attend a public meeting of a public agency where multiple law enforcement officers are standing by the doors to the room where the meeting is held, and a Board member has been informed that he faces arrest if he attempts to participate in the meeting? This office does not believe so. Thus, the Board violated KRS 61.840.

        Following its proposed remedy, the Kentucky Retirement Systems, through Director Thielen, did request that the Kentucky State Police not attend future meetings in an official capacity unless upon the request of the Kentucky Retirement Systems to deal with a threat of public safety. However, this request does not insure that individual Board members or third parties of outside state governmental entities could not ignore the request in the future, and utilize law enforcement officers without the request of the public agency or a quorum of the Board. Certainly, law enforcement officers may attend public Board meetings, but third parties cannot utilize law enforcement for the inappropriate purposes discussed herein. ⁹

        The record also establishes that Secretary Stephens also indicated an investigation to Lang if he sought election as Board Chair. During the meeting, after being nominated for Board Chair but before a vote occurred, Lang declined to be considered for the position at that time. The Board agreed to defer the election of officers until a later meeting. This office finds that the indication of an investigation of Lang if he sought election as Board Chair, which he subsequently declined to so seek, violated KRS 61.840. The record does not suggest that Lang’s nomination as Board Chair and a Board vote on the nomination would have disrupted the maintenance of order at the meeting. In addition, the audio recording reveals that Secretary Stephens did not comment on Lang’s nomination during discussion or further discussion in the meeting. Thus, the condition was not for the maintenance of order in violation of KRS 61.840.

        Indeed, the conditions the Board placed upon meeting disrupted the public business of the Board. Even though the audio recording of the meeting indicates a cordial atmosphere at times during the meeting, the Board did not elect officers as it intended to, despite members stating the necessity and importance of electing a Chair and Vice Chair, and a member of the public did not offer comment as he intended to.

        Finally, even in this office’s narrow analysis finding the Open Meetings Act was violated, it must be noted that the actions by several individuals in this instance were egregious. A democratic government is built on laws, and disagreements as to civil laws are resolved in a court of law, not by force. Whether the indication of arrest was a “threat” or “explanation,” it raises significant concerns as to the methods and judgment displayed by the individuals who made them. It cannot be repeated. This Office further suggests that the law enforcement agency involved in this situation should evaluate how it became involved and how to avoid doing so in the future.

        C.        No Violation of KRS 61.810

        Although the Board violated KRS 61.840, it did not violate KRS 61.810(1) or (2) by holding a closed meeting with a quorum of Board members, or having a series of less than quorum meetings where the members attending collectively constitute at least a quorum of the members of the public agency. The Kentucky Open Meetings Act prohibits “meeting in number less than quorum for the express purpose of avoiding the open meetings requirements of the Act.”  Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 474 (Ky. 1998). As KRS 61.810(2) provides:

Any series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section. Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues.

        Accordingly, violation of the Open Meetings Act as it relates to “secret” or closed meetings is predicated on two kinds of prohibited conduct: (1) a private meeting of a quorum of the members of an agency at which public business is discussed or action is taken, and (2) a series of less-than-quorum meetings attended by members of the agency collectively constituting a quorum and held for the purpose of circumventing the requirements of the Act.   09-OMD-093. The third element requires a showing that the gatherings are held for the purpose of avoiding the requirements of the Open Meetings Act. Id.

        In this matter, the record does not show that the Board conducted a private meeting of a quorum of its members at which public business was discussed or any action was taken. Likewise, the record does not show that prior to the May 19, 2016, public meeting the Board conducted a series of less than quorum meetings attended by its members collectively constituting a quorum.

        Under KRS 61.645(8)(c), a majority of the trustees constitutes a quorum of the Board. As the Board consists of thirteen (13) trustees, a quorum of the Board would be seven (7) trustees. The record demonstrates that the conversations concerning Elliott and Lang, although behind closed doors, did not involve a quorum of the Board members at one time, and did not involve a series of less than quorum meetings where members attending the meetings collectively constituted a quorum of Board members. Rather, the record shows that the series of conversations involved five (5) Board members, collectively. Therefore, the Board did not violate KRS 61.810(1) or (2).

        A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.

Andy Beshear

Attorney General

S. Travis Mayo

Assistant Attorney General

#227

Distributed to:

William Thielen

Jim Carroll